In Matter of M-A-M-, 25 I. & N. Dec. 474 (B.I.A. May 4, 2011), a panel of the Board of Immigration Appeals (BIA or Board) held that (1) aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required, (2) the test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses, (3) if there are indicia of incompetency, the immigration judge (IJ) must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings, (4) if the alien lacks sufficient competency to proceed, the IJ will evaluate appropriate safeguards, and (5) IJs must articulate the rationale for their decisions regarding competency issues.
The Board starts out by setting forth the test for mental competency and defining who exactly is incompetent.
the test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
Proof of incompetency can include the following:
- Noticeable behaviors “such as the inability to understand and respond to questions, the inability to stay on topic, or a high level of distraction.”
- “evidence of mental illness or incompetency”; and
- evidence of applications for disability benefits and affidavits or testimony from friends or family members.
- When should Immigration Judges make competency determinations?
- What factors should Immigration Judges consider and what procedures should they employ to make those determinations?
- What safeguards should Immigration Judges prescribe to ensure that proceedings are sufficiently fair when competency is not established?
As a threshold matter, the BIA find that an alien is presumed to be competent to participate in removal proceedings. … Absent indicia of mental incompetency, an Immigration Judge is under no obligation to analyze an alien’s competency. … [However, the] Act and the regulations contemplate circumstances in which competency concerns trigger the application of appropriate safeguards. INA § 240(b)(3) [8 USCA § 1229a(b)(3)] provides, “If it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.”
The Board said:
The Act’s invocation of safeguards presumes that proceedings can go forward, even where the alien is incompetent, provided the proceeding is conducted fairly. … If an Immigration Judge determines that a respondent lacks sufficient competency to proceed with the hearing, the Immigration Judge will evaluate which available measures would result in a fair hearing.
Although the Act and the regulations provide direction for handling cases in which competency is an issue, they do not set forth the process that an Immigration Judge should use to assess the competency of an alien appearing in Immigration Court. This decision sets out a framework for that purpose.
Unlike in criminal proceedings, a lack of competency in civil immigration proceedings does not mean that the hearing cannot go forward; rather, procedural fairness is required. In immigration proceedings, the Fifth Amendment entitles aliens to due process of law. … Included in the rights that the Due Process Clause requires in removal proceedings is the right to a full and fair hearing.
To meet traditional standards of fundamental fairness in determining whether an alien is competent to participate in immigration proceedings, Immigration Judges must accord aliens the specific “rights and privileges” prescribed in the Act. … Therefore, the test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
The Board said that in cases involving aliens with issues of mental competency, IJs will need to consider whether there is good cause to believe that the alien lacks sufficient competency to proceed without safeguards. The Board then outlined a wide variety of observations and evidence that constitute indicia of incompetency.
Because the Department of Homeland Security (DHS) will often be in possession of relevant evidence, particularly where the alien is detained, the Board said that DHS has an obligation to provide the immigration court with relevant materials in its possession that would inform the court about the respondent’s mental competency.
The Board noted that: Mental competency is not a static condition. … As a result, Immigration Judges need to consider indicia of incompetency throughout the course of proceedings to determine whether an alien’s condition has deteriorated or, on the other hand, whether competency has been restored.
Even if an alien has been deemed to be medically competent, there may be cases in which an Immigration Judge has good cause for concern about the ability to proceed, such as where the respondent has a long history of mental illness, has an acute illness, or was restored to competency, but there is reason to believe that the condition has changed. In such cases, Immigration Judges should apply appropriate safeguards.
On the other hand, we also recognize that there are many types of mental illness that, even though serious, would not prevent a respondent from meaningfully participating in immigration proceedings. In other words, a diagnosis of mental illness does not automatically equate to a lack of competency.
When there are indicia of incompetency, an Immigration Judge must take measures to determine whether a respondent is competent to participate in proceedings. The approach taken in any particular case will vary based on the circumstances of the case.
If an Immigration Judge determines that a respondent lacks sufficient competency to proceed with the hearing, the statute provides that the Immigration Judge “shall prescribe safeguards to protect the rights and privileges of the alien.” Section 240(b)(3) of the Act. Based on the statutory and regulatory parameters, we conclude that Immigration Judges have discretion to determine which safeguards are appropriate, given the particular circumstances in a case before them.
Drawing guidance from the regulations and legal precedent, we note that there are a number of safeguards available to Immigration Judges, some of which they may have already taken when initially assessing the respondent’s competency. Examples of appropriate safeguards include, but are not limited to, refusal to accept an admission of removability from an unrepresented respondent; identification and appearance of a family member or close friend who can assist the respondent and provide the court with information; docketing or managing the case to facilitate the respondent’s ability to obtain legal representation and/or medical treatment in an effort to restore competency; participation of a guardian in the proceedings; continuance of the case for good cause shown; closing the hearing to the public; waiving the respondent’s appearance; actively aiding in the development of the record, including the examination and cross-examination of witnesses; and reserving appeal rights for the respondent. The Immigration Judge will consider the facts and circumstances of an alien’s case to decide which of these or other relevant safeguards to utilize.
In some cases, even where the court and the parties undertake their best efforts to ensure appropriate safeguards, concerns may remain. In these cases, the Immigration Judge may pursue alternatives with the parties, such as administrative closure, while other options are explored, such as seeking treatment for the respondent.
To summarize, if there are no indicia of incompetency in an alien’s case, no further inquiry regarding competency is required. The test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses. If there are indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings. If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate and apply appropriate safeguards. The Immigration Judge must articulate the rationale for his or her decision.
